The Exchange

I am fresh back from seeing “Milk” and thought it was the right time to put some thoughts on the world wide web (!). Fittingly I saw the movie after Sean Penn won the Oscar in what was also a protest vote by the Academy against California’s proposition 8, and Heath Ledger won a posthumous Oscar amidst outside anti-gay protestations that he has “burned in hell” for his role as a gay cowboy in ‘Brokeback Mountain’.

And yet proposition 8 is all around us, alive and kicking. Here in Germany, where I spend some of my less corporate-law laden days, a country which boasts a constitution and a constitutional court that thrive on equality and the ever-elusive dignity, the Federal Constitutional Court has not considered it constitutionally necessary for homosexual couples to be accorded the right to the label of marriage. Instead, civil partnership and its various counterparts across Europe and the globe are handed over to the gay movement as a token gesture of compromise, much like the time when your parents gave you a Mickey Mouse lollipop instead of taking you to that godforsaken Disneyland (good, but not quite good enough, even if you think it’s overrated).

My talk is as empty as that ‘happy ever after’ money-making wonderland? “It’s the same thing”? “What’s the difference”? If you find yourself saying these things then imagine this. A black man and a white woman go to the relevant authorities to get married. They are told that in fact they can only sign up to the civil partnership, with exactly the same benefits and legal rights and obligations. “Why can’t we get married?” they’ll ask, to be told: “well, by definition, historically etc., marriage is for people of the same race only.”

A crude example, perhaps? I think not. If marriage is about building a family on a monogamous sexual relationship of love and care, and if all human beings are to be treated equally with relation to all institutions of government (marriage being one of them), then the burden is on them, the governments who deny this institution to homosexual couples, to explain why.

And the bottomline is, they can’t. 

Making the historical/definitional argument gets you nowhere because on that premise, all men would have been created free and equal and women would still be practically owned by their husbands/fathers. Saying marriage is by definition and throughout history only for heteros is like saying things that we can only now be ashamed of, such as the argument that marriage is only for two people of the same race, invoked in many ‘Racial Integrity’ Acts that were thankfully struck down in the 1960s by the ‘advent’ of racial equality in the US Supreme Court. See the case of Loving v Virginia – only decided in 1967, it rings too close to home. The definitional argument is therefore simply a way to evade the moral question of whether this supposedly value-free/neutral definition results in a violation of human rights, of dignity and of equal treatment for all.

Equality always begs the question of difference, and the question is what is a legitimate distinction and what isn’t. The distinction based on the argument that homosexuals cannot reproduce is redundant – 80-year-olds cannot do that either, yet heterosexual 80-year-olds are not denied their right to marriage. It is made even more redundant now that states including the UK are allowing gay couples to adopt children.  So what is different? Granted, there is the difference that in one case, we are talking about a man and a woman, a husband and wife, and in the other about a man and a man or a woman and a woman. But this does not tell us anything about why marriage should be denied to homosexual people on this distinction and instead simply collapses into the difference by definition which is again not only redundant but also repugnant for the above reasons.

So why civil partnership? Why something other than marriage? That is the necessary starting point. And if you consider that there’s no huge difference between the revered institution of marriage and the new concept of civil partnership then put yourself in their shoes. You probably only realise the significance of an institution if you are denied it. Maybe many black children didn’t care much for the white people’s swimming pool in Tennessee. Maybe it wasn’t even such a nice swimming pool and maybe they got one which was just as good. But being denied access to that swimming pool nonetheless was a clear and shameful violation of their dignity.

Homosexuals are being treated differently with the ‘separate but equal’ institution of civil partnership, by being denied the status of the label of marriage, and for no justification.

So there’s some food for thought for those of us comfortable with the ‘separate but equal’ treatment that the majority has thought fit to grant to our gay, lesbian and transgender fellow human beings all over the world.

For more information see proposition 8 in California, and civil partnerships in the UK